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the confidence and affection of the people. The situation is difficult, and a solution of its problems cannot be found in a day. It may be said that a remedy should be proposed for the undoubted evils that exist; but a remedy can only be effected through the united action of the profession. A few suggestions may, however, not be out of place.
The fundamental principles of procedure should be restated and applied in view of the transition in society during recent years. The activity of the courts should be restricted, and those who seek to experiment with justice should be received with scant courtesy and scant consideration. The injured man, and he alone, should consume the time of the court. When this injured man presents himself at the bar of justice, he should know of what his injury consists, should be able to state his grievance in unequivocal language, and by the res upon which he declares in his first pleading, he should be required to abide until the end. It should be remembered that defendants in court have rights as well as plaintiffs, and that one of the rights of a defendants is that he be fully advised of the charge made against him. That amendments in furtherance of justice to any pleading should be allowed is beyond question; but the rule should be inflexibly enforced that no amendment that changes the cause of action should be tolerated. Jurisdiction of the subject matter is only obtained by the courts by means of a statement in the complaint of matters of which the law takes cognizance; and, on the other hand, jurisdiction is lost through a departure, even though other matters may be alleged of which the law in a proper proceeding might take cognizance. The court sua sponte should, in proper cases, raise the question of its own jurisdiction, and should abruptly terminate proceedings that are coram non judice.
Broad minded lawyers despise the naked technicalities of the law, and are never so ill satisfied as when they learn of the determination of a cause otherwise than upon its absolute merits. These sentiments are not, however, incompatible with a stern and resolute insistance that the law shall not, through lax procedure, lose its vigor and its certainty.
Two ordinances of Francis Bacon might with propriety be adopted, one of which provided that if a pleading was immoderately long, both the party and the lawyer under whose hand it passed should be fined. And the other, which imposed penalties upon those who tendered sham or evasive answers. As a remedy for the useless, annoying, and vexatious legislation with which we are afflicted, a slight modification of the law of the Locrians might be adopted, by providing that the proposer of a new law should stand forth in the assembly of the people with a rope about his neck, and if the law failed of its purpose that he be instantly strangled.
When these and other kindred improvements are inaugurated, we will better appreciate the statement of Coke that the known certainty of the law is the safety of all. The most valuable temporal heritage that we have received from our ancestors is our jurisprudence, and its fate is in the hands of the lawyers of this generation. As a preliminary to the work of its salvation, let us study the language of Story; and then turn to the Acts of the Apostles and read, or reread, as the case may be, concerning the preliminary examination of the man who was left in bonds by Felix.
ROBERT G. WITHERS
CRIPPLE CREEK, COLORADO.
SOME KINKS OF THE LAW. When I was a law student, one of my professors, Mr. Minor, believed that the common law of England as modified and adapted by the American States was the most perfect handiwork of man. To him the law was a goddess at whose shrine he was a devout worshiper. The law to him meant the embodiment and expression of reason, and his favorite legal maxims were: “The reason of the law is the life of the law,” and “Qui haeret in litera, haeret in cortice." "He who stumbles over the letter of the law has penetrated no deeper than the outer bark of his subject.”
There was one proposition which caused him great annoyance, because he did not know how to dispose of it. The law must be right, it must be reason, and it is that rule laid down and approved by the court of last resort. Suppose then that the Supreme Court overrules a former decision. Suppose that it declares that a former decision was wrong, that the rule formerly laid down was a wrong rule, then the question is, “What was the law after the first opinion was rendered, and before it was overruled ???
The ordinary man would unhesitatingly say that the law was at all times the rule laid down by the Supreme Court, and that it had been changed, but not so Mr. Minor, he could not bring himself to admit that unreason and wrong could ever be law.
The practicing lawyer, whether on the bench or at the bar, is not troubled with the solution of theories.
The judge's effort is to select from the facts presented to his attention those which are cardinal, and to determine what are the rules applicable to those facts, while the practitioner must know what is the law and must be able to determine what facts are of importance; what facts call into play rules of law which are favorable to his client; what facts he must explain, and of what facts he must fight shy. The more able the attorneys in any case, the contention is less what is the law, and more what principles are applicable to the case in hand, and particularly is this so when the question is a new one; that is to say, when facts arise upon which the courts of last resort have not passed, and some question is to be solved by the application of general legal principles, and not by following the lead of some judge who has already worked out the proposition.
If a lawyer has the happy faculty of being able to determine what are the determinative facts, the distinguishing features of his case, then the question of finding out what is the law upon those facts is usually a matter of industry, diligence and accessibility to books. Sometimes, however, he is called upon to advise how certain results may be legally accomplished, or what may be done legally in a certain line or direction, and he finds that the question presented to him has not been decided by the courts, or that the decisions are not harmonious, that industry will not bring the solution of his enigma, and that he has nothing to rely on except his judgment and such ability as he may possess to select and apply the correct and controlling principles, and such principles as will be accepted and adopted by the courts which have the last and controlling guess and say on such matters.
A question of this kind has arisen since the adoption of our Spanish war revenue laws in the organization of corporations which desire to issue their stock fully paid in the purchase of property, especially of mining property. Must the deed of conveyance bear revenue stamps to correspond with the face value of the stock which is to be fully paid in the purchase of the property, or what can be safely done? Where one purpose of organizing a company is that persons may deal in and buy and sell its corporate stock, it
is frequently desirable to have a large capitalization, $1,000,000 not being unusual. If the property deeded is to contain stamps to correspond to a valuation of $1,000,000 that would mean $1,000, or under the amendment which took effect July 1, $500, which is quite an item. And how can a corporation claim, with any show of legal success, that its realty is worth $1,000,000 under the State law under which its stock is issued fully paid, and only a few thousand dollars for purposes of taxation under the federal law.
Some attorneys have deemed that this difficulty might be obviated by giving an option, which is not taxable, on the property, and then issuing the stock fully paid in purchase, not of the property which is taxable, but of the option, and in a good many quarters this seems quite popular. We believe that this conclusion is not only wrong, but that the plan is fraught with danger. Of course the whole
is to issue the stock in such manner that its holders will have a perfect title, that each share of stock will be as valid as every other share, and that it will be fully paid, so that no holder or purchaser will be liable for corporate debts, and the question is how can this be done most cheaply, but with perfect safety.
If a traveler should find himself lost, he would first stand still and take his bearings, and note the points of the compass and get his directions; he would also note all landmarks; for instance, he would remark all natural objects which might serve to guide him; if on the plains, he would remember that old buffalo trails converge going in the direction of water, and if in the forest, he would observe that the bark of trees is of a lighter color on the sunny side.
Let us first take our legal bearings. We look at the minutes of the organization meeting of a company having 1,000,000 shares at one dollar each. We there read that John Brown informed the meeting that he held an option from Bill Smith on a mining claim, and if the company would issue and sell to him its capital stock fully paid he would sell to the company his option, and would procure the execution of a deed for the property from Smith directly to the company. We then read that the proposition was accepted,